For Women Scotland: an HE perspective

The Supreme Court’s judgment on the interpretation of “sex” in the Equality Act raises some particularly difficult questions for educational institutions.

A quick recap

• Last month the Supreme Court overruled the Court of Session and decided that, when used in the Equality Act, “sex” means “biological” sex (used in the judgment to describe the sex of a person at birth) and that man and woman have corresponding meanings. Trans people continue to have the protected characteristic of gender reassignment, and are also protected against sex discrimination in some circumstances. But, under the ruling, even with a gender recognition certificate, they will not be able to change their birth sex for the purposes of the Act.
  
• The factual scenario the Supreme Court dealt with was limited to the representation of “women” on public boards in Scotland. But although it was dealing with a relatively obscure corner of equality law, it was concerned to establish a consistent interpretation of “sex” and related terms across the whole of the Equality Act. The decision therefore has much wider implications.

While the interpretation of the relevant provisions of the Equality Act has been contested, the Supreme Court’s interpretation runs counter, in some important respects, to the Government’s understanding of the Act when it came into force in 2010, and to the guidance promulgated by a number of Government and arms-length bodies, including the Equality and Human Rights Commission. The EHRC has issued an interim update, and has committed to consulting on and drafting a revised code of practice for service providers by the end of June.

Although the Supreme Court is the highest legal authority in the UK, the Human Rights Act provides trans people and their allies with a number of legal routes to challenge this decision by invoking the European Convention on Human Rights. The fact that the decision does not address whether its interpretation of sex is human rights compliant means that we are without a definitive domestic ruling on this point.

A wide-reaching ruling

Much of the public reporting of the decision has focused on the use of single sex toilets, a surprisingly complex issue to which we will return shortly.

But before doing so, it is worth quoting the Supreme Court’s press summary for a flavour of the breadth of the decision:

Additional provisions that require a biological interpretation of “sex” in order to function coherently include separate spaces and single sex services (including changing rooms, hostels and medical services), communal accommodation, and single sex higher education institutions. Similar confusion and impracticability arise in the operation of provisions relating to single sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty, and the armed forces.

Complex organisations like universities will have significant engagement in most of these areas, all of which are governed by different provisions in the Equality Act, most of which are outside the scope of this note, but all of which will need to be managed in a coherent way.

This will be made more complicated for institutions that are already grappling to accommodate opposing protected beliefs on a range of related matters. There are also additional issues to consider such as academic freedom, freedom of speech, the public sector equality duty and obligations in relation to potential harassment (shortly to be supplemented by OfS condition E6).

Talking about toilets

The relevant legislation differs, depending on whether these toilets are in individual workplaces, or whether they comprise, or are part of a service open to the public.

Workplace toilets are covered by comprehensive Health and Safety Regulations dating back to 1992 which require separate “conveniences” for men and women unless they are provided in a fully private room with a lockable door.  Similar provision is made for washing and changing facilities, where these need to be provided for the workforce. 

Although the point has not been decided, we think it is likely that “men” and “women” the 1992 regulations will now be interpreted consistently with the Supreme Court’s decision, and that employers providing workplace facilities where they are required to do this under those regulations would also be acting consistently with the Supreme Court’s interpretation of “sex” under the Equality Act if the use of men’s and women’s toilets is restricted to biological men and women respectively.

In relation to toilets provided as part of a service open to the public, the relevant legal framework is different, since a provider has to show that joint provision would be “less effective” and that the limited provision would be a “proportionate means of achieving a legitimate aim”. Depending on the nature of the site where the toilets are located, and their design, it is likely that most service providers would be able to satisfy this condition in relation to single sex toilets. It is worth adding that where the facilities are provided by a third party under contract to the employer (eg a by a Landlord) employees using that building will be treated as a section of the public.

What has changed is of course the position of trans people. For trans women, the law was previously understood as giving employers and service providers a discretion to admit them to women’s toilets when they had completed their transition – ie to treat them as belonging to the gender in which they presented. It now seems likely that continuing with such a policy will in effect be treated as making mixed, rather than single sex provision, exposing employers and providers to claims for discrimination, though the degree of risk will vary significantly. Similar considerations of course apply to trans men in relation to male toilets, though there is no relevant case law.

As the Supreme Court was at pains to point out, the Act’s protection of trans people remains in place. The EHRC’s update (published on 26 April) stressed that trans people should not be put in a position where there are no facilities for them to use, and that, where possible, mixed facilities as well as single sex facilities should be provided. Most HE institutions are likely to be able to point to at least some mixed facilities, though if they are not of comparable quality, or not so conveniently located, this could give rise to discrimination claims by trans people.

Conclusions

Given the complexities of the issues the Supreme Court’s ruling raises, we believe most HE institutions will wish to take time to consider their position before making a definitive response. As a minimum it seems reasonable to wait for the EHCR’s guidance, which is expected by the end of June, though the resulting uncertainty is far from ideal.

In the meantime, we believe it will be important to engage with all protected groups who are potentially affected by this decision to offer reassurance that their needs will continue to be accommodated. With those holding different protected views contesting terminology, the language and tone chosen will need careful thought.

Mills & Reeve